Does failure to present a charge to a grand jury leave that charge open for future indictment?

Question

In the fatal shooting of Breonna Taylor the Kentucky Attorney General presented a case to a Grand Jury, but the only indictment was for wanton endangerment. Recently this Washington Post story and this CNN story report that at least two jurors have said that neither murder nor manslaughter charges were presented to the jury, even when jurors asked abut such charges. Other sites carry similar stories.

I understand that normally when a Grand Jury declines to indict for an alleged crime, prosecutors may not present it again to a future Grand Jury. (I believe this rule is statutory, not constitutional.) But when, as here, the crime was not even presented to the jury, although the events were, could a later AG or special prosecutor bring such charges?

Answer 1

Does failure to present a charge to a grand jury leave that charge open for future indictment?

Yes.

Indeed, even if the charge is presented to a grand jury and it declines to indict, exactly the same charge that one grand jury declined to indict upon can be presented to a future grand jury and produce a valid indictment.

I understand that normally when a Grand Jury declines to indict for an alleged crime, prosecutors may not present it again to a future Grand Jury. (I believe this rule is statutory, not constitutional.)

While I won't rule out the possibility that such a statute exists, I am aware of no state where that is the case. A charge upon which is grand jury declines to indict is often not presented to a future grand jury as a matter of prosecutorial discretion or prosecutor's office policy, but generally this is not a mandatory rule.

One reason that it is not a mandatory rule is that there is no practical way that a defendant could enforce the rule if it was a mandatory rule. Grand jury proceedings are secret (at least until an indictment is produced and then only as pertinent to the defendant indicted on the charges producing an indictment).

Generally, even the judges in the court calling a grand jury have no access to its proceedings until it issues an indictment, and then has only slightly more latitude to review its proceedings than a defendant in the case.